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Rethinking conditional sentences post COVID-19 | Sayeh Hassan

Tuesday, July 07, 2020 @ 12:05 PM | By Sayeh Hassan

Sayeh Hassan %>
Sayeh Hassan
Having spent over eight weeks in self-quarantine has given me a completely different perspective on conditional sentences. While many people view conditional sentences as a lenient get out of jail free card, I think the current pandemic and the strict almost house-arrest-like conditions that came with it have shown that conditional sentences can in fact be very onerous and a very real form of punishment.

The conditional sentence, more commonly known as house arrest, is set out in s. 742.1 of the Criminal Code and it states that when a person is convicted of an offence and the court imposes a sentence of less than two years, the court has the discretion to order that the offender serve his/her sentence in the community.

There are exceptions however, and anyone convicted of an offence resulting in bodily harm, any offence that involves a weapon or import, export, trafficking and production of drugs is not eligible for a conditional sentence regardless of the length of the sentence imposed.

A conditional sentence usually involves onerous conditions including strict house arrest, sometimes with the exception of going to work, a religious ceremony or for the purpose of attending any medical or legal appointments.

This essentially means no forms of entertainment outside the home, no going out for a walk to get some fresh air, no movies, pubs, patios, gym or sporting events and no visiting friends and family outside the home.

Sound familiar? This was the life of thousands of Canadians across the country during phase one of COVID-19. We all had to spend long hours and days at home in order to help stop the spread of COVID-19. While some of us including myself were fortunate enough to self-quarantine with a spouse, family member or friends that we actually get along with, others including many elderly in our communities were forced to self-quarantine on their own for weeks on end, leading to feelings of loneliness, isolation and depression.

While I was self-quarantined with my husband (whom I get along with) in our comfortable albeit small condo, with both of us keeping our jobs and full salaries I still suffered from bouts of darkness, sadness and depression. There were also numerous occasions when my husband compared our situation to being in prison, wanting to go outside but due to the fact that he is immunocompromised not being able to take that chance.

We were part of a very fortunate group of people during this difficult time, I can only imagine how other people in less fortunate circumstances were able to cope with the isolation, loneliness, depression, fear and uncertainty brought on by self-quarantine.

This brings me back to my argument about conditional sentences. The terms of the conditional sentence can be especially onerous depending on the environment and the home/condo/apartment in which the offender will be serving his/her sentence. The wealthier the client the more comfortable the conditions, but for those marginalized people in the community who live in basement apartments with no sunlight or small apartments with little room to move around and do activities such as exercise the impact of a conditional sentence is felt on a much higher scale.

As well when your freedom to leave your home is taken away and you can no longer go outside even to enjoy a short walk in the fresh air and get some exercise this lack of freedom and control over your own life starts to take a real toll mentally, emotionally and even physically (attested by the 10-pound weight gain many of us experienced while in self-quarantine.)

I am hopeful that at least one of the takeaways from the aftermath of COVID-19 will be a new appreciation for the conditional sentence as a real and serious form of punishment. As a defence lawyer I will continue to recognize this and keep on advocating for conditional sentences for my clients.

Sayeh Hassan is a criminal defence lawyer with Walter Fox & Associates.

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